Jane Doe, Plaintiff, v. Good Samaritan Hospital, Defendant(s).

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Supreme Court, Nassau County, New York.

Jane Doe, Plaintiff, v. Good Samaritan Hospital, Defendant(s).

900030/2019

Decided: October 03, 2019

Counsel for Plaintiff: JORDAN K.MERSON, Esq., MERSONLAW,PLLC, 150 E. 58th Street, 34TH Floor, New York, NY 10155 Counsel for Defendant: BRIAN R. DAVEY, Esq. MULHOLLAND MINION DAVEY MCNIFF & BEYRER, 374 Hillside Avenue, Williston Park, NY 11596

Papers submitted:

Order to Show Cause dated August 21, 2019 X

Affirmation in Opposition X

On February 14, 2019, New York State enacted the Child Victims Act (L. 2019 c.11) ("CVA") which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [f] ); (2) extended the time which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b] ); and (3) opened a one-year window reviving civil actions for which the statute of limitations has already run (even in cases that were litigated and dismissed on limitations grounds), commencing August 14, 2019 (see CPLR 214-g).

Plaintiff submitted this Order to Show Cause dated August 21, 2019 seeking leave to prosecute this action brought pursuant to the Child Victims Act using a "John Doe"/"initials" designation in the caption in place of Plaintiff's true name, to redact Plaintiff's true name from all documents filed in the action, and other relief. The Order to Show Cause is supported only by an Affirmation of counsel (and the Complaint herein is verified by counsel).

Defendant opposed the application by an Affirmation of counsel.

The Court denies Plaintiff's motion with leave to renew. Given Defendant's opposition, the Court believes the application is not properly supported in the absence of an affidavit of the party or someone with personal knowledge of the facts or submission of other evidence in support of the application.

"The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any prejudice to defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]; see Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382 [U] [Sup Ct, NY County 2008]. Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously (Anonymous v Lerner, 124 AD3d at 487).

Doe v. Roman Catholic Archdiocese of New York, 64 Misc 3d 1220(A) (Sup. Ct., Westchester Co. 2019).

Among the factors considered in permitting the use of a pseudonym are: "whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature" (James v. Jacobson, id. at 238); whether the party seeking anonymity has an illegitimate ulterior motive; the extent to which the identity of the litigant has been kept [*17] confidential; whether identification poses a risk of mental or physical harm, harassment, ridicule or personal embarrassment; whether the case involves information of the utmost intimacy; whether the action is against a governmental entity; the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; whether revealing the identity of the party will dissuade the party from bringing the lawsuit; whether the opposition to anonymity has an illegitimate basis; and whether the other side will be prejudiced by use of the pseudonym. Doe I-XXIII v. Advanced Textile Corp., supra at 1068; James v. Jacobson, id.; Doe v. Stegall, supra at 185; Doe v. The Archdiocese of Portland in Oregon, 249 F.R.D. 358, 2008 U.S. Dist. LEXIS 14575 (D.Or.); Doe v. St. Louis Co., 2008 U.S. Dist. LEXIS 2691 (E.D.Mo.); Doe v. Hartford Life Acc. & Ins. Co., supra at 549; EW v. NY Blood Center, supra at 111; Doe v. Provident Life & Acc. Ins. Co., 176 F.R.D. 464, 467-8 (E.D.Pa. 1997). A particularly relevant factor is whether "the injury litigated against would occur as a result of the disclosure of the plaintiff's identity. Doe v. N.Y.U., supra. Doe v Szul Jewelry Inc., 2008 NY Misc. LEXIS 8733 (Sup. Ct., NY Co. 2008); see also, Doe v New York Univ., 6 Misc 3d 866 (Sup. Ct., NY Co. 2004); Sealed Plaintiff v Sealed Defendant, 537 F.3d 185, 189-190 (2d Cir. 2008).

"The party seeking anonymity is required to provide evidence corroborating the allegations in support of the request." Doe v The New York and Presbyterian Hosp., 2018 WL 1226046, at *3 (Sup. Ct., NY Co. 2018) (citation omitted); see, Deer Consumer Products, Inc. v. Little, 35 Misc 3d 374, 390 (Sup. Ct, NY Co. 2012) and cases cited therein; People v P.V., 64 Misc 3d 344 at fn1 (Crim. Ct., Queens Co. 2019); Doe v Smith, 105 F. Supp2d 40, 44 (EDNY 1999).

On this record consisting solely of a "bare bones" affirmation by counsel, the Court is unable to appropriately exercise its discretionary authority to determine the requested relief by balancing Plaintiff's privacy interest against the presumption in favor of open trials and against the risk of prejudice to Defendant.

Further, the Court finds Plaintiff's reliance on Civil Rights Law § 50-b to be misplaced. Actions revived under CPLR § 214-g pursuant to the Child Victims Act such as this action are civil in nature. First, § 50-b requires confidentiality (unavailability for public inspection) of all records of a public officer or employee that tend to identify the victim, including a court file. Doe v Bellmore-Merrick Cent. High School Dist., 1 Misc 3d 697, 700 (Sup. Ct., Nassau Co. 2003). Plaintiff herein does not request sealing or unavailability of the Court's records.

Second, § 50-b was enacted to protect the disclosure of the identity of a victim of sex crimes to ensure the victim's cooperation in criminal investigations or prosecutions. See, Doe v Kidd, 19 Misc 3d 782, 786-87 (Sup. Ct., NY Co. 2008); Doe v New York and Presbyterian Hosp., 2013 WL 6650665 (Sup. Ct., NY Co. 2013); L.K., E.P., and G.I. v The Trustees of Columbia University in the City of New York, 2014 WL 4211527 (Sup. Ct., NY Co. 2014). There is no indication any such investigation or prosecution is involved herein. The Court should not extend the scope of § 50-b beyond the express language of the statute and the intention of the Legislature as set forth in the cases cited above.

Accordingly, in the exercise of the Court's discretion, Plaintiff is granted leave to renew this request for relief within thirty (30) days of the date of this Order.

____________________________

Hon. Steven M. Jaeger

A.J.S.C.

DATED: October 3, 2019

Mineola, NY

Steven M. Jaeger, J.

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